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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Best Western International Inc. v. John Doe

CV-06-1537-PHX-DGC (D. Az., July 25, 2006)

Following the lead of the Delaware Supreme Court in Cahill, the Court holds that to obtain leave to serve a subpoena to ascertain the identity of an anonymous online speaker accused of making defamatory statements, a plaintiff must submit evidence of the validity of his claim sufficient to defeat a motion for summary judgment, and establish the existence of a prima facie case.  Because Best Western had not even identified the allegedly defamatory statements, let alone attempted to show their falsity, the court denied Best Western's motion for leave to serve a subpoena.  Plaintiff was given leave to renew its motion on a more substantive evidentiary showing as to the validity of its claims.  The Court did direct the ISPs from whom discovery was sought to preserve any information they may have concerning the identity of the speakers at issue, recognizing that absent such relief, this data may well be lost.

Plaintiff Best Western International Inc. ("Best Western") is a non-profit membership corporation whose members operate hotels and lodging properties under the Best Western trademark.  Apparently upset with the content of certain anonymous messages posted on a website created by Best Western members to discuss issues of concern related to Best Western, Best Western commenced this suit against various John Doe defendants, charging them with defamation and trademark infringement, as well as with improperly revealing confidential information.  Best Western sought leave of the Court to serve subpoenas on various Internet Service Providers and others to obtain the identity of both the site's operator, and the online speakers responsible for these statements.

The Court did grant so much of plaintiff's application which sought to direct the ISPs to preserve any data they had that would permit these speakers to be identified.

Courts have recognized that ISPs typically retain user information for only a limited period, ranging from a few days to a few months.  The loss of evidence seems particularly possible in this case, as the Internet site expressly states to users that "your identity will be totally and forever withheld and destroyed."

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[T]he Court will issue BWI's requested motion regarding the preservation of documents.  As noted above, there is reason to believe that the information sought by BWI will not be retained by the ISPs or others from whom BWI will seek discovery.  The Court will enter BWI's proposed order to preserve such evidence.

The Court went on, however, to deny Best Western's application, at this time, for leave to serve subpoenas to obtain this data.

The Court held that to appropriately balance the rights of a defamed party to pursue redress against the First Amendment protection offended anonymous speech, a party seeking to ascertain the identity of an anonymous speaker must first submit evidence of the validity of his claim sufficient to survive a motion for summary judgment.  In reaching this result, the Court followed the lead of the Delaware Supreme Court in Cahill.  The Court suggested that a lesser standard may be appropriate when the speech interests at stake were not purely expressive, such as where the anonymous activity consisted of downloading copyright protected materials or other information.

Because Best Western had failed either to identify the allegedly defamatory or confidential statements at issue, or attempt to establish the falsity of these statements or their confidential nature, plaintiff's application failed at this time.  If Best Western elected to renew its motion, such renewed motion, held the Court, would be judged by the 'summary judgment' standard announced in Cahill.

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